## Application of 18 U.S.C. § 205 to Communications Between the

National Association of Assistant United States Attorneys and

the Department of Justice

T h e re stric tio n s o f 18 U .S .C . § 205 preclude current federal em p lo y e es from re p resen tin g th e N ational A sso c ia tio n o f A ssista n t U nited States A tto rn ey s befo re the D epartm ent o f Ju stice regarding co m ­ p e n sa tio n , w o rk p lace issu es, and other issues that focus on the interests o f A ssistan t U nited States A tto rn e y s o r a n o th e r d iscrete and identifiable class o f p erso n s o r entities

S e c tio n 20 5 d o es not p re c lu d e several o th e r kinds o f c o m m u n ic atio n s betw een the D ep artm en t and N A A U S A o r s im ila r associations. T h e D ep artm en t is not p recluded from d ealin g w ith individual A U S A s o r g ro u p s o f A U S A s in their o fficial c ap acities on m atters affecting A U S A s, e ven if those A U S A s a re co in c id en ta lly m em bers o f N A A U S A N o r does section 205 place any restrictio n s on re p re sen ta tiv e s w h o are n o t current fe d eral e m p lo y ees, such as N A A U S A ’s executive d irecto r orfo rm e r A U S A s no lo n g e r em ployed b y the g o v ern m en t F inally, discussions o f broad policy d ire c te d to w a rd s a large and diverse g ro u p o f p ersons w ould be p erm issible u n d er the statute.

Novem ber 7, 1994

M e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l

You have asked for our opinion as to whether and how the provisions of 18 U.S.C. § 205 apply to communications between employee members of the National Association of Assistant United States Attorneys (“NAAUSA”) and officials of the Department. After consulting with the Office of Government Ethics (“OGE”), whose views on this question were provided to us in an advisory opinion dated September 28, we have concluded that while discussions of broad policy options are not “covered matters” within the meaning of the statute, several of the issuesNAAUSA may wish to present constitute “covered matters” under § 205. Accordingly, that section’s prohibition on representational activities would bar a federal employee from representing NAAUSA’s position on those matters before department officials.Section 205 is not a barrier to other types of communications between the Department and NAAUSA or similar associations. The Department is in no way precluded from dealing with individual or groups of Assistant United States Attorneys (“AU SA s”) in their official capacities on matters affecting AUSAs, even if thoseAUSAs are coincidentally members of NAAUSA. Nor does § 205 place any restrictions on representatives who are not current federal employees, such as N A A U SA ’s executive director or any former AUSAs no longer employed by thegovernment. Finally, discussions of broad policy directed towards a large and diverse group of persons would be permissible under the statute.



### 212I. Background

NAAUSA characterizes itself as a professional, non-governmental association with the primary objective of promoting and protecting the career and professional interests of AUSAs. It is incorporated as a non-profit corporation in the District of Columbia, and is organized to operate as a business league or trade associationwithin the meaning of § 501(c)(6) of the Internal Revenue Code. NAAUSA Articles of Incorporation. NAAUSA’s membership, currently numbering almost1,000, is open to all current and former AUSAs, including supervisors and managers. The founders of NAAUSA patterned the organization after the Federal Bureau of Investigation Agents Association, founded in 1981, and also compare their activities to those of national, state, and local bar associations. According to its promotional materials, NAAUSA’s immediate priorities include soliciting the views of its members on legal and law enforcement issues and presenting thoseviews to the Department, Congress and the public; seeking greater AUSA compensation from the Department and from Congress, including a retirement plan comparable to those enjoyed by other law enforcement personnel, bonuses and cash awards; and working with the Department on workplace issues, such as parental leave and child care. Membership solicitation letter from Lawrence J. Leiser, President, NAAUSA (Jan. 1994); see also Newsletter of the NAAUSA, vol. 1, issue 1 (June 1994). The executive director of NAAUSA, who is not a federal employee, and its president, an AUSA, have requested meetings with the Attorney General, the Attorney General’s Advisory Committee (“AGAC”), the Executive Office ofU.S. Attorneys (“EOUSA”), and other department officials to discuss their concerns on behalf of NAAUSA and its members. You have asked us to identify any restrictions § 205 would place on NAAUSA’s communications with department
officials.

II. Section 205: Overview

Section 205 subjects any “officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States” who, “other than in the proper discharge of his official duties . . .acts as agent or attorney for anyone before any department, agency, court, courtmartial, officer, or civil, military, or naval commission in connection with any covered matter in which the United States is a party or has a direct and substantial interest” to penalties including imprisonment for up to one year and a civil fine of not more than $50,000. 18 U.S.C. §§ 205(a), 216. For the purposes of § 205, the term “covered matter” is defined as “any judicial or other proceeding, application,request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter.” Id. § 205(h). Application o f 18 U S C. § 205 to Com m unications Between the N ational Association o f

A ssistant United States A ttorneys and the Department o f Justice



### 213Opinions o f the Office o f L egal Counsel

There are several classes of representations which are not restricted in any way by § 205. Representations before Congress, which is not a department, agency, or court, are not covered by § 205.' In addition, since § 205’s prohibitions apply onlyto officers and employees of the United States, any non-federal employee representative of NAAUSA, such as its current executive director or a former AUSA nolonger employed by the government, may represent NAAUSA before the Department without violating the statute.2W here a federal employee wishes to represent NAAUSA before the Department, the OGE has stated, and we concur, that

[a]s a general proposition, it seems clear that § 205 would bar an employee from representing an employee organization before the Government unless the representation was part of the employee’s official duties, or otherwise met one of the exceptions in the statute,or was undertaken in accordance with a statute that explicitly exempted the activity from the proscription of § 205. There is no indication that Congress intended to generally exempt employees from the prohibition of § 205 when representing employee interest

groups.

OGE Opinion at 2 (footnote omitted).

A. O fficial D uties

By its terms, § 205 does not apply to activity undertaken pursuant to an employee’s official duties. For this reason, the activities of employees such as the U.S. Attorney members of the AGAC are not restricted by § 205. The members ofthe AGAC, at the direction of the Attorney General, participate in a process estab1 W e address in a separate opinion certain F irst A m endm ent and related issues pertaining to testim ony by an A U SA on legislation m w hich the D epartm ent has an interest, where the AU SA is not authorized to speak on beh alf o f the D epartm ent but rather is appearing in a personal capacity on behalf o f N AAUSA " Section 205 does not apply to representations made by an employee on his own behalf, or to purely factual com m unications As the O G E has explained, B ecause § 205 does not prohibit self-representation, an em ployee m ay represent his own view s before the G overnm ent in connection w ith a particular m atter even if those views are the same asthose held by an organization in which the em ployee happens to be a m ember. . [A]n exam ination o f all of the circum stances surrounding the com m unication m ight[, however,] indicate thatthe em ployee was in fact representing th e organization to the G overnm ent on the m atter. For exam ple, if the em ployee’s views were subm itted in w riting on the organization’s stationery, or if the em ployee identified him self as an officer or m em ber o f the organization in staling his views,the G overnm ent m ight properly conclude that the em ployee was really acting as the organizatio n 's representativeLetter for the H onorable W alter Dellinger, A ssistant Attorney General, O ffice of Legal Counsel, from Stephen D Potts, Director, O ffice o f G overnm ent Ethics al 2-3 (Sept 28, 1994) (“OGE O pinion") Finally, OGE also noted lhat the prohibitions of § 205 are not applicable to “[cjom m um cations o f a purely ministerial nature,” such as “responding to requests from the G overnm ent for factual inform ation " Id at 3



### 214lished and directed by department officials to accomplish the Department’s mission. See 28 C.F.R. § 0.10 (1994). AGAC members are clearly acting pursuant totheir official duties, and their representation of other employees or of the Committee does not violate the statute. NAAUSA cannot be characterized as an internal management committee akin to the AGAC. As a corporation, NAAUSA has a legal identity independent of that of the Department or its members. Department officials played no role in its creation, and exercise no control over its officers or its activities. NAAUSA’s membership includes individuals who are no longer employees of the federal government. While NAAUSA’s agenda focuses on issues arising from its members’ status and responsibilities as AUSAs or former AUSAs, an employee’s decision to participatein or represent NAAUSA is not an obligation of his employment, and, concomitantly, not an official duty.

B. The Exceptions to Section 205

NAAUSA’s proposed activities do not fall within the scope of the limited exceptions to § 205’s prohibitions. The exception for representation in “personneladministration proceedings” is somewhat related to NAAUSA’s objectives. It provides that “[n]othing in subsection (a) or (b) prevents an officer or employee . . . from acting [with or] without compensation as agent or attorney for, or otherwise representing . . . any person who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings.”18 U.S.C. § 205(d)(1). When advising on the appropriateness of instituting criminal charges, we have declined to give the term “personnel administration proceedings” an “overly narrow reading,” instead suggesting that it should be read as applying to the general class of “personnel matters.” Memorandum for the Deputy Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re: A U SA ’s Representation o f Rem ovable Justice D epartm ent Official at 5-6 (Aug. 31, 1982) (“Olson Memorandum”). The personnel proceedings exception, however, is limited to the representation of individual employees, and cannot be read as permitting employees to represent associations or corporations inpersonnel matters. OGE has rejected extending the exception for selfrepresentation to representations of employee associations “because it appears that the same theory would necessarily apply in cases where an employee represents the interest of any organization of which he is a member.” OGE Opinion at 4. Ourconclusion that the personnel administration exception does not apply to the representation of an employee association such as NAAUSA is consistent with this reasoning. The legislative history of § 205 indicates that Congress included this exceptionto allow “government employees, who are subject to disciplinary or other personnel action . . . to obtain a government lawyer to ensure the effective representation Application o f 18 U.S C. § 205 to Comm unications Between the National Association o f

Assistant United States Attorneys and the Department o f Justice

215Opinions o f the Office o f Legal Counsel

of their rights without having to incur the expense of hiring private counsel.” SeeOlson M emorandum at 2 (internal quotation marks omitted). The advisory opinions of the Office of Government Ethics construing this exception involve the representation of individual employees in matters affecting them individually. See,

e.g., O.G.E. Informal Adv. Op. 85 x 1, (Jan. 7, 1985) in Informal Advisory Letters and M em oranda and Form al Opinions 1979-1988, at 511 (1990) {"OGE Informal O pinions ”) (noting application of this exception to appearances before Military Discharge Review Boards and the Boards for the Correction of Military Recordson behalf of an individual employee). There is no indication in either the legislative history of § 205 or in those advisory opinions that Congress intended, in addition to facilitating assistance for individual employees facing personnel action, to authorize the representation of employee associations in such matters.3W hile there are no decisions considering the application of the personnel administration exception to representation of an association or corporation, this Office has addressed the question o f whether the implied exception for selfrepresentation under § 205 allows an employee to represent a corporation in which he is the sole shareholder. In that opinion, we advised an agency that § 205 wouldprohibit an employee from acting as agent or attorney on behalf of such a corporation. Conflict o f Interest-Litigation Involving a Corporation O w ned by G overnment Attorney, 1 Op. O.L.C. 7 (1977). Analyzing the same issue, OGE has
advised that

[t]he implied exception in section 205 for self-representation does not extend to the representation of a distinct legal entity such as acorporation (e.g., through an appearance by its President). Moreover, there is nothing in the legislative history on section 205 that would indicate that a corporation wholly owned by natural persons enumerated in 18 U.S.C. § 205 should also be regarded as being covered by the self-representation exception.

O.G.E. Informal Adv. Op. 84 x 14 (Oct. 31, 1984) in O G E Informal Opinions at 493, 494 (referring to the list of immediate family members the exception codified in subsection (e) permits an employee to represent in certain circumstances).

C. S tatu tory Exem ptions: L abor R elations Statutes

Section 7102 of title 5 gives “employee” members of “labor organization^]” the right “to form, join, or assist any labor organization. . . . [S]uch right [i]ncludes

3 C on g ress's consideration and enunciation o f the principles governing collective em ployee activity are found in the Federal L abor R elations statutes, not in the conflict of interest laws As we explain infra, with the exception o f representation on behalf o f a certified labor organization, the labor statutes do not evince any intent to exem pt associational representation from the ethics provisions of title 18.

216the right . . . to act for a labor organization in the capacity of a representative and

the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government.” 5 U.S.C. § 7102. After consulting with the Justice Management Division, we haveconcluded that § 7102 does not itself create any right to represent a labor organization or to “bargain” with an agency. Bargaining rights are available only to labororganizations that satisfy the requirements for certification in §§ 7111-7114. Under the labor management relations statutes, “bargaining” is not limited to negotiations for a binding collective agreement. A “discussion” between an agency and a labor organization of compensation or parental leave, for example, would probably be considered “bargaining” for these purposes. Since NAAUSA is not certified to bargain under the relevant provisions, § 7102 confers no representational rights onits employee members. The Justice Management Division agrees with this conclusion.

III. The Scope o f “Covered M atter” and NAAUSA’s Objectives

Since an employee’s representation of NAAUSA would not be an aspect of his official duties, would not fall under one of the exceptions to § 205, and would notbe undertaken pursuant to any statute exempting his actions from § 205, the prohibitions of the statute would apply. Section 205 penalizes any federal employee who “acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or civil, military, or naval commission in connection withany covered matter in which the United States is a party or has a direct and substantial interest.” 18 U.S.C. § 205(a)(2). A “covered matter” is defined for purposes of the statute as “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular m atter.” Id. § 205(h) (emphasis added).

A. Covered Matter: A Definition

Section 205 was enacted as part of the comprehensive reform of the government ethics laws in 1962. Act of Oct. 23, 1962, Pub. L. No. 87-849, 76 Stat. 1119, 1122 (“the Act”). In interpreting the term “covered matter” in § 205, it is therefore appropriate to consider the language and structure of the other ethics provisions contained in the same section of the Act. The portions of the Actcodified at 18 U.S.C. §§ 203, 207-208 all restrict employees’ conduct in connection with “particular matters” or a list of matters essentially identical to that in § 205(h). 4 Application o f 18 U.S.C. § 205 to Comm unications Between the National Association o f

A ssistant United Slates Attorneys and the Department o f Justice

4 As originally enacted, § 205 prohibited any em ployee of the United States from acting as an agent or attorney before any agency or departm ent "in connection with any proceeding, application, request for a ruling or other determ ination, contract, claim, controversy, charge, accusation, arrest, or other particular

217Opinions o f the Office o f Legal Counsel

We find the Office of Government Ethics’ regulations and the opinions of this Office construing § 208 especially helpful in interpreting the term “covered matter” in § 205. Section 208 prohibits any executive branch officer or employee from participating “personally and substantially” in any “judicial or other proceeding,application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter” in which he has a “financial interest.” 18 U.S.C. § 208(a). Like § 205, § 208 is designed to prevent a government employee from misusing his official position to advance the interest of a non-governmental entity. In addition, the list describing the official actions covered by § 208 contains all but one of the terms listed as “covered matters” in § 205. Com pare § 208(a) (the term “investigation” is not among the listed matters) to § 205(h). The Office of Government Ethics has issued regulations defining the term “particular matter” for the purposes of § 208. In those regulations, “particular
matter” is defined as

encom passing] only matters that involve deliberation, decision, or
action that is focu sed upon the interests o f specific persons, or a discrete and identifiable class o f persons. Such a matter is covered by this subpart even if it does not involve formal parties and may include governmental action such as legislation or policy-makingthat is narrowly focused on the interests of such a discrete and identifiable class of persons. The term particular matter, however, does not extend to the consideration or adoption o f broad policy options that are directed to the interests o f a large and diverse group o f

persons.

5 C.F.R. § 2635.402(b)(3) (1994) (emphasis added).

m atter ” 76 Stat at 1122. The term “covered m atter” w as introduced in the 1989 am endm ents to the statute, which also divided § 205 into lettered subsections Ethics Reform Act of 1989, Pub L No. 101-194, § 404, 103 Stat. 1716, 1750. T he language sanctioning a federal em ployee who acts as an agent or attorney was placed in subsection (a), and modified to prohibit acting as an agent or attorney “in connection with any covered m atter.” T he list of term s beginning w ith “proceeding, application, request for a ruling” was moved to the definition o f “covered m atter” in subsection (h) Id. Section 203 prohibits federal employees from seeking or accepting com pensation for any representational service “in relation to any proceeding, application, request for a ruling or other determ ination, contract, claim , controversy, charge, accusation, arrest or other particular m atter m which the United States is a party or has a direct and substantial in te re st’’ 18 U .S.C § 203(a)(1).Section 207(a) restricts form er employees o f the executive branch from appearing before or com m unicating to federal em ployees “in connection with a particular m atter” in which the form er em ployee “participated personally and substantially ** A “particular m atter” is defined as including “any investigation, application, request for a ruling or determ ination, rulem aking, contract, controversy, claim , charge, accusation, anest, or judicial or other proceeding.” Id § 207(i)(3).

218OGE has applied the same standard in construing the terms in § 205. In their

advisory opinion, OGE noted that

there may be situations where a member of an employee organization wishes to represent the organization to the Government on a matter which is not a “particular matter” within the meaning of § 205. In such a case, the representation would be made in connection with a broad policy m atter that is directed to the interests o f a large and diverse group o f persons rather than one that is focu sed on the interests o f a discrete and identifiable class.

OGE Opinion at 4 (emphasis added). With the OGE advice and regulations as guidance, we look also to our own opinions examining the scope of the term “particular matter” as used in § 208. In an unpublished 1990 opinion, this Office addressed that question in some detail. Memorandum for C. Boyden Gray, Counsel to the President, from J. Michael Luttig, Acting Assistant Attorney General, Office of Legal Counsel, Re: A pplicability o f 18 U.S.C. § 208 to G eneral Policy D eliberations, D ecisions and Actions (Aug. 8, 1990) (“Gray Memorandum”). That analysis was driven by the principle
of ejusdem generis , the canon which directs that ‘“ a general statutory term should be understood in light of the specific terms that surround it.’” Id. at 3 (quoting Hughey v. United States, 495 U.S. 411, 419 (1990)). To determine the scope of the term “particular matter” in § 208, it was therefore necessary to ascertain thecommon characteristics of the more specific matters enumerated in the list of covered matters in § 208(a): a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge,accusation, arrest, or other particular matter. Each of these specific terms, we concluded, involves a determination of the interests of “specific individuals or entities,
or a discrete and identifiable class of individuals or entities.” Id. at 5. “ ‘The purpose of this [particular matter] language throughout the federal conflict of interest laws is to limit application of the laws to actions focusing upon particular, distinct,and identifiable sets of facts with reasonably measurable implications and consequences.’” Id. at 5 n.8 (quoting R. Jordan, Ethical Issues Arising From Present or Past Government Service, in Professional Responsibility' 171, 177 (1978)). To illustrate these principles, that opinion observed:

[The] decision to pursue an administrative enforcement actionagainst a specific company or group of companies is sufficiently focused upon the interests of a specific entity or a discrete and identifiable group of entities as to be comparable in particularity to an “investigation,” a “judicial proceeding,” or a “contract” negotiation. . . . In contrast, deliberations on the general merits of an omnibus Application o f 18 U.S.C § 205 to Comm unications Between the National Association o f

Assistant United Slates Attorneys and the D epartm ent o f Justice



### 219Opinions o f the O ffice o f Legal Counsel

bill, such as the Tax Reform Act of 1986, are too diffuse in their focus to be analogous to an “application,” “request for a ruling,” or a“claim . .. In sum, whether or not the object of deliberation, decision, or action constitutes a “particular matter” will depend upon how closely analogous the object of deliberation, decision, or action is to the object of a typical “judicial proceeding,” “claim,” “application,” or other matter enumerated in section 208.

Id. at 6. W e also noted that “governmental action such as legislation or policymaking that is n arrow ly focused upon the interests o f a specific industry o r a specific profession is concerned with a ‘discrete and identifiable class’ and may implicate section 208.” Id. at 7 (emphasis added). Applying these principles, we consider whether representations on behalf of NAAUSA would constitute “covered matters” under § 205.

B. A re NAAUSA’s Objectives Particular Matters?

None of the correspondence we have seen between NAAUSA and the EOUSAidentifies specific topics for discussion between NAAUSA and department officials. We are of the opinion that many of the issues listed as “immediate objectives” in N A A U SA ’s promotional materials, including those focusing upon theterms and conditions of employment for AUSAs, would qualify as “covered matters” under § 205. AUSAs are a “discrete and identifiable class” by virtue of their employing agency, their profession, and their position. See Gray Memorandum at 7 (governmental action such as legislation or policymaking that is narrowly focused upon the interests of a specific industry or a specific profession is concerned with a“discrete and identifiable class”). W hether particular legislation or policy determinations constitute “covered matters” will depend upon how closely the matter focuses upon the interests of AUSAs and upon whether the determination can be expected to have a direct and predictable effect on those interests. The inquiry is necessarily fact specific and not susceptible to bright line rules.With that caveat, we are able to draw some general conclusions. The compensation and workplace issues NAAUSA has identified as priorities for action will generally be covered matters under § 205. Any determination or legislation that addressed topics such as raising the AUSA salary cap, improving AUSA retirement benefits, reinstating immunity for federal prosecutors, or allowing unscheduled overtime bonuses for AUSAs would be focused exclusively on the interests of the
class of AUSAs. It is not as clear that discussions of general policy, such as the Crime Bill, would inevitably be particular matters. It would be necessary to analyze the factualcontext using the principles outlined above. For example, the question of the ap

### 220propriate emphasis that the Department should place on prevention programs may

not sufficiently focus on the interests of AUSAs to be deemed a particular matter,while addressing a provision that would increase the number of prosecutors probably would.It may thus be possible for department officials to meet with employee representatives of NAAUSA to discuss certain broad policy issues. All parties should be aware of the limitations § 205 imposes on the discussion before such a meeting, and the agenda should be reviewed to ensure that the discussion does not reach
“covered matters.”

IV. The Covington M em orandum

Upon learning that this Office would be drafting an opinion analyzing the application of § 205 to communications with NAAUSA representatives, NAAUSA’s counsel submitted a memorandum for our consideration explaining why in their view the restrictions of § 205 do not apply. See Memorandum for Carol DiBattiste, Director, Executive Office for U.S. Attorneys, from Sean F. Foley, Counsel to NAAUSA, Covington & Burling (Sept. 13, 1994) (“Covington M emorandum”). This section addresses the reasoning of that memorandum. NAAUSA’s counsel makes three broad arguments that § 205 should not apply to activities undertaken on behalf of NAAUSA. First, since the interests of the
officers and members of NAAUSA are the interests of AUSAs qua AUSAs (orformer AUSAs), the interests served by contacts between NAAUSA and department officials do not involve the outside, private interests that Congress sought torestrict in § 205. Covington Memorandum at 6. Second, it is argued that the contacts by NAAUSA involve “generalized legal and policy issues and do not pertain to the day-to-day departmental proceedings covered by § 205.” Id. at 7; see also
discussion infra at p. 4. Finally, Covington argues that interpreting § 205 to restrict contacts between members of a professional association and employing agencies would be inconsistent with the practice of the Federal Government as evidenced by association participation in the National Performance Review, the activities of the member associations of the Public Employees Roundtable, and theabsence of any discussion of § 205 in the chapters of the rescinded Federal Personnel Manual which encouraged agencies to cultivate a working relationship with professional associations. Id. at 8-9.

A. “O utside In terests” an d the Policy U nderlying § 205

W e agree with NAAUSA’s counsel that the purpose of § 205 is to prohibit a Federal employee from representing outside, private interests. W e do not agree
with his contention that NAAUSA should not be considered an “outside” interest.As a non-profit corporation with an independent legal identity, NAAUSA is a priApplication o f 18 U.S C. § 205 to Comm unications Between the National Association o f

A ssistant United States Attorneys and the D epartm ent o f Justice



### 221Opinions o f the Office o f Legal Counsel

vate entity with interests that are distinct from those of the Department and its members. NAAUSA has an institutional interest in raising funds, attracting new members, increasing its visibility to the public, and building a reputation as a credible, influential body. Gaining access to government decisionmakers servesthese institutional interests, which cannot be characterized as internal to the Department. Nor are these institutional interests necessarily identical to its members’ interests as present or former department employees. The structure of § 205 contradicts the contention that Congress did not intend for the prohibition of § 205(a) to cover contacts related to employment matters. Ifthis were the case, there would have been no need to include the exception for representation of employees in “personnel administration proceedings” in § 205(d). Moreover, as explained in section II.B, this exception cannot be fairly extended to cover representing a corporation or association, even one entirely composed of covered employees.

B. N A A U S A ’s O bjectives are n ot C overed M atters

The Covington Memorandum does not address the “particular matter” language in § 208 and the accompanying regulations. Counsel for NAAUSA relies instead on the language of § 207, portions o f which forbid conduct related to “particular matters” while others apply to “any matter on which such person seeks official
action.” Id. at 5 (comparing 18 U.S.C. § 207(i)(3) to § 207(c)&(d)). Given the use of both terms in § 207, that memorandum argues that Congress could not have meant for the term “particular matter” to include “every matter in which a Federal employee might become involved in a representational capacity” in § 207, nor by analogy in §§ 205 or 203. Id. W e agree with the conclusion that matters such as the formulation of broad policy are not necessarily “particular matters” under § 205. As OGE stated in their opinion, “[i]n such a case, the representation would be made in connection with a broad policy matter that is directed to the interests of a large and diverse group of persons rather than one that is focused on the interests of a discrete and identifiable class.” OGE Opinion at 4. A definition of “particular matter” which is limited to actions affecting a “discrete and identifiable class” is narrower in scope than the language “any matter on which such person seeks official action” in § 207, and is consistent with previous constructions of “particular matter” under § 208 and its regulations. The Covington Memorandum does not specify the “legal and policy positions affecting AUSAs” that NAAUSA is interested in communicating. Determinations regarding the compensation, pensions, or working conditions of AUSAs, which have been identified as NAAUSA objectives in NAAUSA publications, would constitute covered matters under this definition. Any agent representing NAAUSA



### 222in the discussion of such matters should therefore not be a current federal employee.

C. Inconsistency with F ederal G overnm ent Practice

The Covington Memorandum argues that interpreting § 205 as restricting contacts between agency officials and professional associations would be inconsistent with the practice of several federal agencies and groups, including the participation of associations in the National Performance Review, the activities of the PublicEmployees Roundtable associations, and the guidelines provided by former chapters 251 & 252 of the Federal Personnel Manual. We are not familiar with the procedures of the National Performance Review or of other federal agencies with respect to communications with professional organizations. Compliance with§ 205 would not necessarily preclude achieving the objectives of the National Performance Review. An employee’s participation in a working group or managementcommittee structured along the lines of the Attorney General’s Advisory Committee could be undertaken pursuant to his official duties. Section 205 would not restrict that employee from representing the views of his colleagues or of his office in
that forum. We have reviewed the former chapter 252 of the Federal Personnel Manual,which did indeed note that “an agency may consult with any association or organization on matters related to its mission and programs” and that “the relationship between the agency and the association or organization may be very close andmutually beneficial” without any mention of § 205 and its restrictions on communications. Federal Personnel Manual, ch. 252 at 3-4 (Jan. 16, 1990). These statements are consistent with our conclusion that such an organization may make itsviews known to the Department or meet with Department officials through the organization’s staff or members who are not government employees. However, it is a sufficient response to the argument in the Covington Memorandum to state that theDepartment and its employees cannot avoid complying with a criminal statute simply because it is not mentioned in the Federal Personnel Manual.

CO NCLUSION

We agree with the Office of Government Ethics that there is no general exception for employment related matters or employee associations from the restrictions of § 205. A deliberation, decision, or action focused upon the interests of AUSAsor another discrete and identifiable class would be a “covered matter,” and accordingly, communications between a current federal employee acting as a representative of NAAUSA and the Department on those matters would violate the

statute. Application o f 18 U.S C § 205 to Com m unications Between the National Association o f

A ssistant United Slates Attorneys and the D epartm ent o f Justice

223Opinions o f the Office o f Legal Counsel

Section 205 is not an impediment to several other kinds of communications between the Department and NAAUSA or similar associations. The Department is in no way precluded from dealing with individual or groups of AUSAs in theirofficial capacities on matters affecting AUSAs, even if those AUSAs are coincidentally members of NAAUSA. Nor does § 205 place any restrictions on representatives who are not current federal employees, such as NAAUSA’s executive director or any former AUSAs no longer employed by the government. Finally, discussions of broad policy directed towards a large and diverse group of persons would be permissible under the statute.

W ALTER DELLINGER A ssistant Attorney General Office o f Legal Counsel

224